MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 August 2003
         DOCKET NUMBER: AR2003087795

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Deyon D. Battle		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas Lanyi		Member
Mr. Harry B. Oberg		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That his bad conduct discharge (BCD) be upgraded to an honorable discharge; that his reason and authority for discharge be changed; that reentry eligibility (RE) code be changed from RE-4 to RE-1; and that his separation code be changed.

APPLICANT STATES: That his chain of command abused its authority when it decided to discharge him with a BCD. He states that discharge was improper because his chain of command failed to follow the discharge regulation. He goes on to state that his court-martial and his records of nonjudicial punishment (NJP) indicated only minor or isolated offenses. He concludes by stating that his conduct and efficiency rating were either good or pretty good and that his record of promotions shows that he was generally a good soldier. In support of his application he submitted copies of records and certificates showing the programs that he has successfully completed since his discharge and while incarcerated.

EVIDENCE OF RECORD: The applicant's military records show:

On 7 September 1982, he enlisted in the Army at Fort Dix, New Jersey, for 3 years in the pay grade of E-3. He successfully completed his training as a tactical wire operations specialist. On 24 February 1983, he was transferred to Fort Bliss, Texas.

On 18 March 1983, NJP was imposed against the applicant for being disrespectful in language toward a noncommissioned officer (NCO). His punishment consisted of a reduction in pay grade, a forfeiture of pay, restriction and extra duty.

On 9 June1983, NJP was imposed against him for failure to go to his appointed place of duty. His punishment consisted of a reduction in pay grade, a forfeiture of pay, restriction and extra duty.

On 17 June 1983, the applicant was barred from reenlistment. His commander cited five records of counseling and two records of NJP as a basis for the bar to reenlistment.

He had NJP imposed against him again on 21 June 1983, for failure to go to his appointed place of duty. His punishment consisted of a forfeiture of pay, restriction and extra duty.

On 11 August 1983, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 15 July until 22 July 1983. He was sentenced to confinement at hard labor for 10 days.



On 26 September 1983, NJP was imposed against the applicant for two instances of failure to go to his appointed place of duty and for failure to place sufficient funds in the bank for payment of a check he had written to the commissary. His punishment consisted of a forfeiture of pay, restriction and extra duty.

On 23 October 1983, the applicant was convicted pursuant to his pleas by a special court-martial of two specifications of disobeying a lawful order; of being disrespectful in language toward his senior NCO; and of being AWOL from 4 October until 12 October 1983. He was sentenced to a BCD and confinement at hard labor for 109 days.

The convening authority approved the sentence as adjudged and on 17 April 1984, the United States Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.

Accordingly, on 28 November 1984, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3 as a result of a duly reviewed and affirmed special court-martial conviction. He had completed 1 year, 2 months and 23 days of total active service and he was furnished a BCD. He was also assigned an RE-4 code and a JJD (as a result of a court-martial conviction) separation code.

There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, paragraph 3-11 provides that a soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence duly executed.

Title 10, United Stated Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Army Board for Correction of Military Records is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to modify the severity of the punishment imposed.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge. Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes.

RE-4 indicates that a person is not qualified for continued Army service by virtue of being separated from the service with a nonwaivable disqualification such as a bar to reenlistment.

Army Regulation 635-5-1 prescribes the specific separation codes to be entered on the Certificate of Release or Discharge (DD Form 214). It states that when a soldier is released from active duty as a result of a court-martial conviction the soldier will be assigned a JJD separation code.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

2. The Board has noted the applicant’s contentions. However, the type of discharge that he received and the reason therefore, were appropriate considering all of the facts of the case.

3. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

4. His post-service conduct is not sufficiently mitigating to warrant the relief requested. He was discharged as a result of a special court-martial conviction and the BCD that he received appropriately reflects his acts of misconduct.

5. Additionally, he was assigned a separation code and an RE code in accordance with the appropriate regulations and there is no evidence of record to support his contention that his command abused its authority or failed to follow regulations. His acts of misconduct were clearly not isolated incidents and his overall conduct while he was in the Army was poor at best. The fact that he is incarcerated as of this date tends to show that he is unable to overcome those disqualifications that made him unqualified for continued service.

6. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
7. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__hbo___ ___tl____ ___ao___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2003087795
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/08/28
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	1984/11/28
DISCHARGE AUTHORITY	Court-martial
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.